IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2023-KA-00718-COA
LARRY LEVI, JR. A/K/A LARRY PHILLIPS APPELLANT LEVI, JR.
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/22/2023 TRIAL JUDGE: HON. DAVID H. STRONG JR. COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAUREN GABRIELLE CANTRELL DISTRICT ATTORNEY: DEE BATES NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 12/10/2024 MOTION FOR REHEARING FILED:
EN BANC.
WILSON, P.J., FOR THE COURT:
¶1. Following a jury trial, Larry Levi Jr. was convicted of possession of more than two
grams but less than ten grams of methamphetamine with intent to distribute and possession
of more than one-tenth of a gram but less than two grams of cocaine with intent to distribute.
On appeal, Levi argues that the trial court erred by admitting evidence of his prior
convictions for possession of cocaine with intent to distribute, simple possession of cocaine,
and felony fleeing and the specifics of his prior sentences. For the reasons explained below,
the trial court erred by admitting evidence of Levi’s prior conviction for simple possession, but the error was harmless. Otherwise, we find no error and therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Prior to his May 2023 trial, Levi filed a motion in limine to exclude any evidence that
he had been convicted of (1) possession of cocaine with intent to distribute in 2015, (2) sale
of cocaine in 2013, (3) sale of cocaine and transfer of marijuana in 2002, and (4) simple
possession of cocaine in 1997. Levi argued that his prior convictions were not admissible
for a valid purpose under Mississippi Rule of Evidence 404(b) and should be excluded under
Mississippi Rule of Evidence 403. The trial court denied Levi’s motion, finding that the
convictions were admissible under Rule 404(b) to show intent to distribute. The district
attorney then argued that the convictions were also admissible under Rule 404(b) to show
“knowledge,” i.e., that Levi “has knowledge of what cocaine is.” The court agreed and
directed the parties to prepare a jury instruction stating that Levi’s prior convictions could
be considered on the issues of “intent” and “knowledge.”
¶3. Over Levi’s renewed objection, sentencing orders showing Levi’s convictions were
admitted into evidence before the State called its final witness. The 2015 sentencing order
showed that Levi also pled guilty to the crime of felony fleeing, although that conviction was
not mentioned during trial. The court instructed the jury that Levi’s prior convictions were
“offered in an effort to prove intent and knowledge” but could not be considered as evidence
that he was guilty of the charges in this case. The court also instructed the jury “not to infer
that [Levi] acted in conformity with his previous acts.”
¶4. Sergeant Lisa Jackson of the Brookhaven Police Department testified that on July 2,
2 2021, she responded to a report of an assault at Naomi Stanton’s apartment at the Brookwood
Apartments. When Jackson knocked and identified herself, Ramona Hayes opened the door.
Jackson saw Levi inside, and he immediately fled to the rear of the apartment. Jackson
believed that Levi had committed the assault, so she drew her taser and ordered him to come
out. Stanton then emerged from the back of the apartment. She seemed “surprised to see”
Jackson, but she stopped when Jackson ordered her to do so. Levi then reemerged from the
back of the apartment and complied with Jackson’s orders to get on the ground. As Jackson
handcuffed Levi, she noticed that he “was grinding his teeth . . . constantly,” which she knew
to be “a telltale sign of methamphetamine use.”
¶5. Jackson observed a large knot on the back of Stanton’s head and a large welt on her
leg. Stanton and Hayes were both crying and “very scared.” Stanton gave Jackson consent
to search the apartment and led Jackson to a bedroom closet in the back of the apartment.
Stanton lifted some towels in the closet, revealing a plastic container holding
methamphetamine and cocaine, digital scales, a piece of paper holding a small amount of
methamphetamine, and a clear plastic bag holding a small amount of methamphetamine.
Testing confirmed that the substances were cocaine (at least 0.40 grams) and
methamphetamine (at least 4.38 grams).
¶6. Hayes testified that Stanton had called the police after Levi suddenly became violent
and began beating Stanton. Levi took Stanton’s phone, so Stanton borrowed Hayes’s phone
to call the police without Levi’s knowledge. Hayes believed that Levi became violent
because he had been smoking “ice.” Hayes testified Levi had a bag of ice and a bag of crack
3 before the police arrived. Hayes acknowledged that she had used cocaine in the past, but she
said she “finally kind of got off of it.” She testified that she had bought cocaine from Levi
in the past. She denied that the drugs found in the bedroom closet belonged to her.
¶7. Stanton testified that she called the police because Levi was beating her. According
to Stanton, Levi had been using drugs and “just snapped” and became violent. Stanton
acknowledged that she had used cocaine in the past and had purchased cocaine from Levi;
however, she testified that she no longer used drugs. Stanton testified that she was in her
bedroom when Jackson arrived, and Levi ran past her and “stuck [his] drugs under . . . the
towels” in the closet. She denied that the drugs belonged to her.
¶8. The jury found Levi guilty of possession of more than two grams but less than ten
grams of methamphetamine with intent to distribute (Count I) and possession of more than
one-tenth of a gram but less than two grams of cocaine with intent to distribute (Count II).
The court sentenced Levi to serve eight years in the custody of the Mississippi Department
of Corrections (MDOC) for Count I and a consecutive term of three years in the custody of
the MDOC with two years suspended, one year to serve, and two years of post-release
supervision for Count II. Levi filed a motion for judgment notwithstanding the verdict or a
new trial, which was denied, and a notice of appeal.
ANALYSIS
¶9. In his brief on appeal, Levi expressly “acknowledges that, because he was charged
with possession of drugs with intent to distribute, his convictions for sale of cocaine and
marijuana and possession of cocaine with intent to distribute were admissible to show
4 intent.” (Emphasis added). Levi’s concession is consistent with our precedent. As the
Mississippi Supreme Court has held, “[e]vidence of prior involvement in the drug trade is
admissible [under Rule 404(b)] to prove intent to distribute.” Holland v. State, 656 So. 2d
1192, 1196 (Miss. 1995).1 In addition, this Court has specifically held that prior convictions
for possession with intent are admissible under Rule 404(b) to show intent to distribute.
Hosey v. State, 77 So. 3d 507, 516-17 (¶¶33-34) (Miss. Ct. App. 2011) (holding that prior
convictions for possession of drugs with intent to distribute were admissible under Rule
404(b) to show intent to distribute), cert. denied, 78 So. 3d 906 (Miss. 2012); Colburn v.
State, 368 So. 3d 347, 349-53 (¶¶8-21) (Miss. Ct. App. 2023) (holding that a prior conviction
for possession of drugs with intent to distribute was admissible under Rule 404(b) to show
intent to distribute), cert. denied, 368 So. 3d 816 (Miss. 2023).
¶10. However, after expressly conceding that his prior conviction for possession of cocaine
with intent to distribute was admissible, Levi then contradictorily argues that the conviction
should not have been admitted because the amount of cocaine involved in that offense (less
than two grams) could have been consistent with “personal use.” This argument is without
merit. For one thing, Levi did not make this argument in the trial court. Therefore, this issue
is waived on appeal. Gunn v. State, 174 So. 3d 848, 858 (¶28) (Miss. Ct. App. 2014) (“In
1 In Holland, the Supreme Court acknowledged that “[t]he use of a past similar crime as proof of abstract intent to commit a similar crime in the future appears to violate the basic prohibition of [Rule] 404(b).” Id. at 1197. But the Court reasoned that it is inherently difficult to prove a defendant’s “subjective intent,” which is the critical element “separating the crime of simple possession from the crime of possession with intent to distribute.” Id. Thus, the Court “struck” a “balance” by holding that a prior conviction must “satisfy[] the [Rule] 403 filter before its admission into evidence” and by requiring a proper “limiting instruction” if it is admitted. Id.
5 order to raise an error on appeal, Mississippi Rule of Evidence 103(a) requires that a
contemporaneous objection on specific grounds must be made to the admission of evidence
by the trial court.” (emphasis added)).
¶11. Moreover, Levi’s argument is essentially a collateral attack on his own prior guilty
plea and conviction. In 2015, Levi pled guilty to possessing cocaine with intent to distribute.
That conviction was relevant and admissible for the purpose of proving intent to distribute
in this case. Hosey, 77 So. 3d at 516-17 (¶¶33-34); Colburn, 368 So. 3d at 349-53 (¶¶8-21).
Having pled guilty and admitted that he possessed cocaine with intent to distribute, Levi
cannot now argue that he might have possessed the same cocaine only for “personal use.”
Again, Levi previously pled guilty to possessing the cocaine with intent to distribute, not for
mere “personal use.” Accordingly, this issue is without merit.
¶12. Levi also argues that his prior conviction for felony fleeing and the details of his prior
sentences were improperly admitted when his four prior sentencing orders were admitted into
evidence. Levi argues that his “prior conviction for felony fleeing has absolutely nothing to
do with an intent to distribute drugs” and that his prior sentences were “not relevant for any
permissible purpose.” However, Levi never mentioned his felony fleeing conviction in the
trial court, nor did he raise any objection regarding the specifics of his prior sentences.
Therefore, these issues are procedurally barred. “Under Mississippi law, an appellant is not
entitled to raise a new issue on appeal, since to do so prevents the trial court from having an
opportunity to address the alleged error.” Dunn v. State, 693 So. 2d 1333, 1339 (Miss. 1997)
(quoting Crowe v. Smith, 603 So. 2d 301, 305 (Miss. 1992)). Had Levi raised these concerns
6 to the trial court, these issues could have been addressed. Levi’s conviction for felony
fleeing—which came into evidence only because it was in the same sentencing order as his
conviction for possession of cocaine with intent to distribute—and the details of his
sentences could have been redacted. Alternatively, the evidence could have been admitted
by stipulation or in some other form. Having failed to raise these issues in the trial court,
Levi is procedurally barred from raising them on appeal.2
¶13. Finally, Levi argues that the trial court erred by admitting his 1997 conviction of
simple possession of cocaine. On this issue, we agree with Levi. In McDonald v. State, 130
So. 3d 102 (Miss. Ct. App. 2013), cert. denied, 131 So. 3d 577 (Miss. 2014), this Court held
that a trial court erred by admitting the defendant’s prior convictions for simple possession
of marijuana and cocaine in a prosecution for possession with intent to distribute. Id. at 110-
11 (¶¶24-28). We explained:
Mississippi law clearly supports the introduction of McDonald’s intent-to-sell conviction. The intent-to-sell conviction is admissible under Rule 404(b) to establish intent with respect to the present charge. However, the introduction of McDonald’s possession convictions does not serve any purpose for which they would be admissible under Rule 404(b). Therefore, the trial court should
2 Similarly, in Carver v. State, 227 So. 3d 1149, 1155 (¶25) (Miss. Ct. App. 2016), rev’d on other grounds, 227 So. 3d 1090 (Miss. 2017), the defendant conceded that his prior convictions for the sale of cocaine were admissible under Rule 404(b) for the purpose of proving intent to distribute, but he argued that the trial court erred by admitting evidence of an unrelated prior arrest for burglary, prior misdemeanor convictions, and the specifics of his prior sentences. This Court held that the issues were procedurally barred because the defendant failed to make a contemporaneous objection at trial. Id. at (¶28). We also held that the issue did not constitute a “manifest miscarriage of justice” warranting relief under the plain-error doctrine. Id. at 1155-56 (¶29). Likewise, in the instant case, we cannot say that any manifest miscarriage of justice occurred. Levi’s felony fleeing conviction and the specifics of his prior sentences were never discussed during the trial, and the trial court gave the jury a proper limiting instruction.
7 not have permitted the introduction of the possession convictions.
Id. at 111 (¶28) (emphasis added). Likewise, in this case, Levi’s prior conviction for simple
possession was not admissible under Rule 404(b) to prove intent to distribute.
¶14. In addition, in Mitchell v. State, 110 So. 3d 732 (Miss. 2013), the Supreme Court held
that the trial court abused its discretion by admitting the defendant’s prior convictions for
simple possession of cocaine and marijuana in a prosecution for possession of cocaine with
intent to distribute. The State asserted that the prior convictions for simple possession were
admissible “to prove the absence of mistake”—i.e., to show that the defendant “underst[ood]
the drug game” and did not possess the drugs by “mistake.” Id. at 733-34 (¶¶6, 11).
However, the Supreme Court held that the State’s argument was “a non sequitur” because
a claim of “mistake” was “never advanced by [the defendant], nor otherwise placed at issue
by any witness.” Id. at 734 (¶11).
¶15. Similarly, in this case, the State argued at trial and maintains on appeal that Levi’s
prior conviction for simple possession was admissible to prove “knowledge”—i.e., to show
that Levi “has knowledge [of] what cocaine is.” However, Levi’s “knowledge [of] what
cocaine is” was never placed at issue by Levi or any witness. The State relied on Stanton’s
testimony that she had purchased cocaine from Levi in the past and that when the police
arrived at the apartment, Levi hurriedly hid the drugs under towels in her bedroom closet.
In contrast, Levi’s theory of the case was that Stanton was lying and that the drugs belonged
to her, not him. Defense counsel argued in his opening and closing statements that Stanton
was able to lead the police directly to where the drugs were hidden in her own apartment
8 because the drugs belonged to her. Counsel argued, “Not his house, not his drugs.” Levi did
not assert that he did not “know[] what cocaine is.” He did not claim that he unwittingly
possessed a substance that, much to his surprise, turned out to be cocaine. Accordingly, the
trial court erred by admitting Levi’s prior conviction for simple possession to address a
supposed issue that was never contested or “placed at issue by any witness.” Id.
¶16. Nonetheless, we conclude that the error was harmless in the context of all the
evidence properly admitted at trial. We do not agree with the State that the evidence of
Levi’s guilt was necessarily “overwhelming.” Fair-minded jurors could have harbored
reasonable doubts about whose drugs were hidden in Stanton’s apartment.3 Nonetheless, the
error in this case was harmless because the trial court did not abuse its discretion by
admitting Levi’s 2015 conviction for possession of cocaine with the intent to distribute, his
2013 conviction for selling cocaine, and his 2002 convictions for selling cocaine and
transferring marijuana. Given that all those convictions were admitted for proper purposes
under Rule 404(b), it is inconceivable that Levi suffered any marginal undue prejudice
because the jury heard that he had also been convicted of simple possession of cocaine in
1997. For this reason, we conclude that the admission of Levi’s conviction for simple
possession was harmless.
CONCLUSION
¶17. Generally speaking, “[e]vidence of prior involvement in the drug trade is admissible
3 See Stone v. State, 94 So. 3d 1078, 1086 (¶21) (Miss. 2012) (“An error [is harmless and] does not require reversal when it is apparent on the face of the record that a fair minded jury could have arrived at no other verdict than that of guilty.” (quotation marks omitted)).
9 [under Rule 404(b)] to prove intent to distribute.” Holland, 656 So. 2d at 1196 (emphasis
added). Therefore, the trial court did not abuse its discretion by admitting Levi’s prior
convictions for selling cocaine, possessing cocaine with intent to distribute, and transferring
marijuana. However, trial courts should be wary of admitting prior convictions for simple
possession, which serve no similar purpose. Mitchell, 110 So. 3d at 734 (¶11); McDonald,
130 So. 3d at 111 (¶28). In the present case, the trial court abused its discretion by admitting
evidence of Levi’s prior conviction for simple possession. However, for the reasons
explained above, that error was clearly harmless.
¶18. AFFIRMED.
BARNES, C.J., LAWRENCE, McCARTY AND WEDDLE, JJ., CONCUR. EMFINGER, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, P.J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED BY SMITH AND EMFINGER, JJ. WESTBROOKS AND SMITH, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. McDONALD, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.
CARLTON, P.J., CONCURRING IN PART AND IN RESULT:
¶19. I concur in part and in the result. Levi concedes that his two prior convictions of
selling cocaine and his prior conviction for transfer of marijuana were admissible under Rule
404(b) to show his intent to distribute. Holland v. State, 656 So. 2d 1192, 1196 (Miss. 1995)
(“Evidence of prior involvement in the drug trade is admissible to prove intent to
distribute.”). In addition, I concur that the trial court did not abuse its discretion by ruling
that Levi’s prior conviction for possession of cocaine with the intent to distribute was
admissible for the same purpose. Id.; Colburn v. State, 368 So. 3d 347, 349-53 (¶¶8-21)
10 (Miss. Ct. App. 2023) (holding that the defendant’s prior conviction for possession of
cocaine with intent to sell was admissible for the purpose of proving intent to sell), cert.
denied, 368 So. 3d 816 (Miss. 2023). I also concur that Levi waived any issue related to his
prior conviction for felony fleeing or his prior sentences.
¶20. However, unlike the majority, I do not find that the trial court abused its discretion by
admitting Levi’s prior conviction for simple possession of cocaine. Levi was indicted for
one count of possession of methamphetamine with intent to distribute and one count of
cocaine with intent to distribute. Thus, the State had to prove at trial that Levi both (1)
possessed methamphetamine and cocaine; and (2) intended to distribute the drugs. See Miss.
Code Ann. § 41-29-139(a)(1) (Rev. 2023). Specifically with respect “[t]o establish[ing]
possession of a controlled substance,” I find it relevant that “the State must produce evidence
that a defendant (1) was aware of the presence of a substance, (2) was aware of the character
of the substance, and (3) was consciously and intentionally in possession of the substance.”
Alford v. State, 367 So. 3d 1013, 1017 (¶10) (Miss. Ct. App. 2023).
¶21. Given this standard, I find that the trial court did not abuse its discretion in admitting
Levi’s prior conviction of possession of cocaine to show both his “conscious[]” and
“intentional[]” possession of the drugs, as well as his “knowledge”—i.e., that he “was aware
of the presence” and “character” of the drugs. Id. In short, Levi’s intent to possess the
drugs, as well as his knowledge of what methamphetamine and cocaine are, were essential
elements that the State was required to prove, see Miss. Code Ann. § 41-29-139(a)(1), and
that the jury was charged with finding. The jury instructions, for example, required the jury
11 to find that Levi “knowingly” had the drugs in his possession and “knew that it was
methamphetamine” and “knew that it was cocaine” at the time of possession. Proof of Levi’s
“knowing” possession of the drugs—and what they were—was particularly important in this
case because Levi’s defense was that the drugs were not his.4
¶22. Further, although Levi’s prior conviction was for the possession of cocaine, I find that
it was admissible for both counts (one involving methamphetamine, the other involving
cocaine). “Prior drug convictions can be properly admitted under Rule 404(b)'s exceptions
involving drugs different than the charge at issue.” Colburn, 368 So. 3d at 351 (¶16). In
Colburn, the Court noted that “[c]ocaine and methamphetamine are both Schedule II
controlled substances.” Id. As such, the Court found that the defendant’s prior conviction
for possession of cocaine with intent to sell was “not fundamentally different” from his
present conviction for sale of methamphetamine and was properly admitted to show intent.
Id. at 351-52 (¶16). I find that the same common-sense approach should apply in this case.
¶23. Additionally, I find no abuse of discretion in the trial court’s determination that the
probative value of Levi's prior convictions was not substantially outweighed by any
4 The majority cites Mitchell v. State, 110 So. 3d 732 (Miss. 2013), as support for the proposition that Levi’s simple possession conviction was admitted at trial in error. I find, however, that Mitchell is distinguishable. To be sure, the supreme court in Mitchell did find that the trial court committed reversible error by allowing defendant’s prior possession convictions to be admitted at his trial for possession of cocaine with intent to distribute. Id. at 735 (¶14). But the supreme court’s decision on this point was based on its specific recognition that “none” of the Rule 404(b)(2) exceptions to Rule 404(b)(1) “[were] contested in [the defendant’s] case.” Id. at 734 (¶10). That is not the situation here. Levi’s defense was that the drugs found in Stanton’s apartment were not his, so I find that Levi’s “intent” to possess the drugs, as well as his “knowledge” of what was in his possession, was relevant in this case. I find that McDonald v. State, 130 So. 3d 102 (Miss. Ct. App. 2013), also cited by the majority, is distinguishable for the same reason.
12 prejudice, particularly in this case when, as noted, Levi’s defense was that the drugs were not
his. I also find it relevant that the trial court gave the jurors an appropriate limiting
instruction to consider Levi’s prior convictions only as “an effort to prove intent and
knowledge” and specifically instructed them that they “cannot and must not” consider this
evidence in determining whether the “defendant is guilty or not guilty of the charges for
which he is presently on trial.” That instruction further provided, “Also, you are instructed
not to infer that the defendant acted in conformity with his previous acts.” The trial court
also instructed the jurors on the meaning of “intent,” as follows: “‘Intent’ means to have the
purpose to do that which the law prohibits. In this case, the law prohibits the possession and
distribution of methamphetamine and cocaine.” Because “our law presumes that jurors
follow the trial judge’s instructions,” it is appropriate to presume that the jurors in this case
limited their use of the evidence of the prior possession conviction to considering Levi’s
intent and knowledge to commit the crimes charged. Robinson v. State, 247 So. 3d 1212,
1233 (¶51) (Miss. 2018).
¶24. For these reasons, I find no abuse of discretion in the trial court’s decision to admit
Levi’s prior conviction for possession of cocaine at trial.
¶25. Lastly, I find that even if the trial court erred in admitting the prior conviction for
simple possession of cocaine, that error was harmless. On this point, I agree with the
majority that the error would be harmless given that “the trial court did not abuse its
discretion by admitting Levi’s 2015 conviction for possession of cocaine with the intent to
distribute, his 2013 conviction for selling cocaine, and his 2002 convictions for selling
13 cocaine and transferring marijuana.” Maj. Op. at ¶16. As the majority notes, because “all
those convictions were admitted for proper purposes under Rule 404(b), it is inconceivable
that Levi suffered any marginal undue prejudice because the jury heard that he had also been
convicted of simple possession of cocaine in 1997.” Id.
¶26. Unlike the majority, however, I also find that any error would be harmless in light of
the overwhelming evidence establishing Levi’s guilt. “[E]rrors in the admission of evidence
are subject to a harmless-error analysis.” Pittman v. State, 385 So. 3d 1205, 1208 (¶13)
(Miss. 2024). “Where it is clear beyond a reasonable doubt that the error did not contribute
to the verdict, we need not reverse the conviction.” Id. (internal quotation mark omitted).
¶27. In this case, Master Sergeant Jackson testified that Levi saw her as she was let into
the apartment and announced “Brookhaven Police.” Levi “freaked out,” and ran to the back
of the one-bedroom apartment. Stanton testified that she saw Levi “st[i]ck the drugs” under
some towels in the hallway closet, and she led Master Sergeant Jackson to where she saw
Levi hide them. Under some towels, Master Sergeant Jackson collected digital scales, a
Tupperware container containing multiple baggies of drugs and a bag of methamphetamine
concealed in folded paper. In total, Levi possessed 0.4 grams of cocaine and 4.38 grams of
methamphetamine.
¶28. The jury also heard Master Sergeant Jackson testify about her experience working on
various narcotics task forces for seventeen years and her testimony about the amount of drugs
sold by “lower-level drug dealers.” She testified that “lower-level drug dealers sell a half a
gram, a tenth of a gram, two grams, and I would say, on average, close to a gram.” She also
14 testified that it is not unusual for scales to be found with drugs because they are “used to
weigh narcotics out for sale.”
¶29. Additionally, the jury heard the testimony from both Stanton and Hayes that the drugs
and paraphernalia were not theirs and that they each had bought cocaine from Levi at or near
the time of his arrest. Stanton specifically testified that she had recently bought cocaine from
Levi and had paid him for the cocaine the day before the arrest.
¶30. Based on this evidence, I find that there was sufficient overwhelming evidence for the
jury to have found Levi guilty of possession with intent to distribute methamphetamine and
cocaine, and, at minimum, the State proved that Levi possessed the drugs to support the
jury’s possession convictions. As such, even if the trial court erred in admitting Levi’s prior
conviction for simple possession of cocaine, it was harmless beyond a reasonable doubt.
SMITH AND EMFINGER, JJ., JOIN THIS OPINION.